Statement of Tara L. Borelli, Senior Attorney Lambda Legal Defense and Education Fund, Inc.

Select Task Force on the Study of Harassment in the Workplace
U.S. Equal Employment Opportunity Commission
131 M St NE #6
Washington, DC 20507

December 7, 2015

Hon. Commissioners Feldblum and Lipnic, and Members of the U.S. Equal Employment Opportunity Commission Select Task Force on the Study of Harassment in the Workplace: 

I am honored to be invited to testify before you today.  My name is Tara Borelli and I am a Senior Attorney with Lambda Legal Defense and Education Fund, Inc. ("Lambda Legal").  Lambda Legal is the oldest and largest national legal organization whose mission is to safeguard and advance the civil rights of lesbian, gay, bisexual, and transgender ("LGBT") people and those living with HIV through impact litigation, education and policy work.  Ending the discriminatory treatment of LGBT employees is one of Lambda Legal's core priority areas, and Lambda Legal frequently has been counsel of record or amicus curiae in cases addressing Title VII's coverage of workplace discrimination and harassment based on sexual orientation and gender identity.[1] 

As the Equal Employment Opportunity Commission ("EEOC") has reported, harassment based on race, color, national origin, religion, and sex remains pervasive in the workplace, accounting for approximately 30% of workplace charges filed with the EEOC.  This problem is equally serious for LGBT employees, who are increasingly vulnerable as more of them identify openly in the workplace.  In the past, the prevalence of discrimination and harassment against LGBT people led significant numbers of them to hide their sexual orientation and gender identity by remaining closeted.  With the advent of marriage equality, and the increasing visibility of transgender people, greater numbers of LGBT people are coming out in the workplace.  Some are relying on their newfound access to marriage to seek spousal employment benefits.  In other instances, individuals come out as they educate co-workers about their process of gender transition.  The coming out process plays a powerful role in opening hearts and minds, but given the entrenched history of LGBT bias in this country, being visible also allows LGBT people to be targeted for harassment by those with biased views. 

As increasing numbers of LGBT people look to Title VII for protection, they face a unique barrier to addressing harassment through the legal system - specifically, the requirement that actionable harassment be based on a characteristic protected under Title VII, and the courts' historical confusion about whether discrimination based on sexual orientation and gender identity constitutes sex-based discrimination.  A number of courts have previously reached the erroneous conclusion that sexual orientation and gender identity are distinct from, and unrelated to, Title VII's prohibition on sex-based harassment and discrimination.  Many employers thus lack the legal incentive to address and prevent sexual orientation and gender identity harassment.[2] 

A recent case in which Lambda Legal was involved offers a glaring example with respect to Title VII coverage of transgender individuals' claims.  The case involved a National Project Director who upon seeing a transgender employee, said, "What is that and who hired that?  . . .  Please don't tell me that is a[n] [] instructor [with our company]," and that the company did not hire "cross-genders."  Eure v. Sage Corp., 61 F. Supp. 3d 651, 656 (W.D. Tex. 2014).  The court held that Title VII did not protect against "discrimination based on transgender status," concluding that asking "What is that and who hired that" was not "evidence showing that the discrimination was motivated by her failure to act as a stereotypical woman would."  Id. at 662.  In a similar vein, Lambda Legal has participated in a long line of cases involving employer arguments that Title VII has no application to discrimination directed at employees' sexual orientation, and Lambda Legal currently is counsel in cases before the U.S. Court of Appeals for the Seventh and Eleventh Circuits that turn upon this issue.  Hively v. Ivy Tech Cmty. Coll., No. 15-1720 (7th Cir.); Evans v. Georgia Reg'l Hosp., No. 15-15234 (11th Cir.). 

Much work remains to overcome the erroneous authority embedded in some circuit courts' jurisprudence, and to develop positive, affirmative guidance in all circuit courts.  Resolving these threshold questions of coverage is a key part of ending workplace harassment for LGBT people.  Employers already have powerful incentives under Title VII to prevent unlawful harassment and, when it occurs, to address it promptly and thoroughly.  Once employers understand their legal obligations to prevent anti-LGBT harassment, the expectation is that harassment will be prevented before it occurs. 

The EEOC has taken groundbreaking steps to help clarify the law, from designating sexual orientation and gender identity claims as an enforcement priority, to issuing well-reasoned federal sector decisions that will help guide the courts.  See, e.g., Macy v. Holder, Appeal No. 0120120821 (E.E.O.C. April 20, 2012), Lusardi v. McHugh, Appeal No. 0120133395 (E.E.O.C. April 1, 2015), Baldwin v. Foxx, Appeal No. 0120133080 (E.E.O.C. July 15, 2015).  And Lambda Legal is using the Commission's thorough analysis to persuade the federal courts, especially the appellate courts, to recognize the protections that private sector workers already have under existing federal law.

As part of our core mission work, Lambda Legal maintains a Legal Help Desk that provides information and resources to the public regarding discrimination related to sexual orientation, gender identity and expression, and HIV status.  Every year, thousands of LGBT individuals contact our Help Desk for assistance, providing a snapshot of the workplace issues facing our community.  Dating back to at least 2013, Lambda Legal has received nearly 1,000 calls each year from individuals who reported experiencing discrimination and/or harassment in the workplace based on sexual orientation and gender identity.  The rates of callers reporting harassment based on sexual orientation and gender identity is significant.  For calls involving sexual orientation discrimination, approximately 35% of callers report experiencing sexual orientation-based harassment.  For calls involving gender identity discrimination, approximately 31% of callers report experiencing gender identity-based harassment. 

A couple of anecdotes from our callers offer a human dimension to these statistics.  One transgender caller described pervasive harassment while working in a healthcare setting.  Other staff at the health care facility mis-gendered the caller repeatedly by refusing to use the female name and pronouns reflective of her gender identity as a woman.  Instead, the other staff consistently referred to her by a masculine name and pronouns, which not only humiliated her in front of other co-workers, but also signaled to patients and their visiting family members that she was transgender.  The resulting confusion and distress on the part of some patients and families made it extremely difficult at times for the caller to complete her job duties.  In addition, the caller's health care plan contained a blanket exclusion for all health care related to her gender transition, making it difficult for her even to access mental health treatment to help cope with the harassment at work.  This caller's report is consistent with the hundreds of other reports we have received from transgender individuals, who also have described having to cope with persistent harassing questions and commentary about their medical history and genitalia, being singled out and stigmatized through denials of access to the restroom matching their gender identity, and having trouble getting name and gender markers corrected on employment records. 

The reports of sexual orientation discrimination that we receive share many common elements as well.  Callers frequently reported being called anti-gay slurs, and for many gay men, being branded as "diseased" and "AIDS carriers."  These activities frequently occurred in front of customers, and were tolerated when customers joined in.  Employers often fail to respond when co-workers deface gay employees' workspaces with sexually explicit materials, and even when they sometimes physically assault gay employees by engaging in unwelcome sexual behavior, such as groping.

We appreciate the Select Task Force's recognition that harassment of LGBT employees remains a grave issue that requires serious and continuing focus.  I would be glad to answer any questions you may have. 

[1] See, e.g., Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (1998) (amicus); Hively v. Ivy Tech Cmty. Coll., No. 15-1720 (7th Cir.) (appeal pending) (counsel); Evans v. Georgia Reg'l Hosp., No. 15-15234 (11th Cir.) (appeal pending) (counsel); EEOC v. Boh Bros. Constr. Co., L.L.C., 731 F.3d 444 (5th Cir. 2013) (amicus); Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) (brought under 42 U.S.C. § 1983 but decided on principles applicable to Title VII) (counsel); Dorr v. First Kentucky Nat'l Corp., 796 F.2d 179 (6th Cir. 1986) (counsel); Terveer v. Billington, 34 F. Supp. 3d 100 (D.D.C. 2014) (amicus); Lopez v. River Oaks Imaging & Diagnostic Group, Inc., 542 F. Supp. 2d 653 (S.D. Tex. 2008) (counsel); Mitchell v. Axcan Scandipharm, Inc., Civil Action No. 05-243, 2006 U.S. Dist. LEXIS 6521 (W.D. Pa., Feb. 17, 2006) (amicus). 

[2] One part of Lambda Legal's docket starkly illustrates these dynamics.  As marriage equality became the law in an increasing number of states, Lambda Legal received more calls than ever before from employees being denied various types of spousal employment benefits for same-sex spouses.  Employers repeatedly insisted that their discriminatory treatment is excusable under the law by arguing that sexual orientation discrimination is not cognizable under Title VII, in each case relenting only after Lambda Legal expended significant time and resources sending demand letters and pursuing EEOC charges - all while employees incurred hundreds or thousands of dollars in out-of-pocket damages, and often, while their loved ones delayed needed medical care.